What Do You Mean That There Are Two Types of Patents?

What Do You Mean That There Are Two Types of Patents?

When we think about patents, most of us imagine a long and expensive process that takes years to finalise.

Anyone seriously considering the process realises they must have a long-term plan to see it through before they can make a cent from their product, and on this basis, the pursuit of the patent is often abandoned. But did you know there are different types of patents?

Intellectual Property in Australia is protected by copyright, design registration, trademarks and patents. If you have a novel invention the way to protect it from being copied is by obtaining a patent. A patent gives you the exclusive right to exploit your invention during the term of the grant. It will not only deter competitors from copying your invention, but you can enforce your rights against anyone careless enough to breach them.

Unfortunately though, the negative image held by the humble patent prevents many innovators from utilising its protection. In an age where science and technology are evolving and improving at a rapid rate, new software and processes have a very short commercial life. No sooner have they hit the market, than a better, faster, more efficient approach is introduced. For these inventors, the ability to be the first to market often surpasses the advantage of long term protection.

The solution, however, is found in understanding the different types of patents.

Standard Patents.

These are the ones we’re most familiar with. They require applicants to prove a new and useful ‘inventive’ step – an entirely new invention. This is a high threshold test to meet, and why many applications don’t proceed beyond the first stage. Applications are fully examined prior to a grant, which means searches are conducted to confirm that the invention is in fact novel. Those that proceed successfully might be finalised in six months or up to several years before a patent is granted. A grant does, however, last for 20 years which enables the patent holder plenty of time to make money from their invention.

Innovation Patents.

A lesser known option is the Innovation Patent. Rather than prove an ‘invention’, an applicant must only show a new and useful ‘innovative’ step – a new way of using something. The evidentiary threshold is much lower and rather than ‘examining’ the application to the extent of standard patents, they need only meet certain formalities before a grant is made. This enables grants to be made in as little as a month. The flipside of these obvious advantages is that a closer inspection of the validity of an innovation must happen if a breach occurs and the patent holder wants to enforce their rights. These patents only last for eight years, but in some industries, that’s sufficient to extract all commercial value before the protected process is outdated.

Provisional applications are available to both types of patents, allowing the inventor 12 months in which to lodge a fully-fledged Standard or Innovation Patent application.

A couple of warnings:

Part of every patent application (or enforcement) will look at what is called ‘prior art’ to establish the validity of the patent. Prior art is evidence that your invention has already been described or shown to someone and is no longer novel. The timing of the patent is therefore critical because it must be in place before you publish your innovative idea on a website, in a crowd-funding campaign, or in any other format that makes it known. Inadvertently making your invention known to the public can amount to ‘prior art’ and actually work against your own patent application, so be sure to approach it all in the correct order.

Innovation Patents are granted so quickly that there is little time to amend your application or change it to a standard patent. So, get qualified advice before you attempt a DIY. A poorly prepared application could see you unwittingly ruin your chances of protecting a valuable asset.

More information can be found about each patent type at IP Australia so before you cast your IP to the sidelines, take a closer look at the benefits of an Innovation Patent and see what it can offer.

Georgia Thomas is the Principal Solicitor of Legal HQ Pty Ltd, a small firm on the NSW Central Coast dedicated to teaching and supporting small business owners. Her love for creatives, innovators and entrepreneurs is central to her workshops and presentations, which are designed with their unique needs in mind. Along with her legal qualifications, Georgia has completed post-graduate studies in business and management. She is also the author of several books including The Small Business Legal Toolkit, launched in June 2018. Learn more about her book at www.legaltoolkit.online